A June 24, 2013 decision by the United States Supreme Court has made it more challenging for whistleblowers to win lawsuits against their employers for illegal retaliation when brought under federal law (Title VII of the Civil Rights Act of 1964).

A whistleblower is one who reports the misconduct or illegal activity of his or her employer. The report can be made within the employer organization or to an external investigating agency. Sometimes whistleblowers face workplace retaliation by their employers. According to the Occupational Safety & Health Administration’s (OSHA) Whistleblower Protection Program, an employer cannot retaliate by taking adverse actions such as:

  • Firing or laying off
  • Blacklisting
  • Demoting
  • Denying overtime or promotion
  • Disciplining
  • Denial of benefits
  • Failure to hire or rehire
  • Intimidation
  • Making threats
  • Reassignment affecting prospects for promotion
  • Reducing pay or hours

In its decision in University of Texas Southwestern Medical Center v. Nassar, the Supreme Court, with a narrow four to three majority, changed the legal standard for analyzing retaliation cases. Prior to the decision, for a plaintiff to prevail the plaintiff needed to prove that the retaliation was a “motivating factor: in an adverse action against the plaintiff. Motivating factor is the same standard that used in non-retaliation employment discrimination cases.

Writing for the majority, Justice Anthony M. Kennedy stated that retaliation cases require a higher level of proof, known as the “but-for” causation standard. This standard raises the bar so that to prevail in a retaliation case, the plaintiff must prove that the retaliation was the “determinative factor” in an adverse action against the plaintiff.

If you have been wrongfully terminated or subjected to retaliation for reporting the misconduct or illegal activity of your employer in New York City, it is critically important that you seek legal advice to learn your rights and to seek compensation.